Delhi High Court
Jagjeet Kaur vs State on 25 February, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 155/2013
% 25th February, 2014
JAGJEET KAUR ......Appellant
Through: Mr. Vineet Sharma, Adv.
VERSUS
STATE ...... Respondent
Through: Ms. Megha Bharara, Adv. for Ms.
Zubeda Begum, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This first appeal is filed under Section 8(5)(e) of the Hindu Minority
and Guardianship Act, 1956 against the judgment of the court below dated
19.12.2012 which has dismissed the petition which sought permission to sell
the two fifth of the half undivided share of the minor sons of the
appellant/petitioner in the back portion of the first floor of property bearing
no.10/61, Subhash Nagar, New Delhi.
2. The court below has dismissed the petition by observing that with
respect to an undivided share in an immovable property, no permission is
FAO 155/2013 Page 1 of 4
required. This is so stated in paras 8 to 10 of the impugned judgment and
which read as under:-
"8. The counsel for the petitioner submitted that Section 8(2)
Hindu Minority& Guardianship Act lays down that no
guardian can sell property of minor without permission
of the court. To my mind said section applies to exclusive
property of minor and not to the share of minor in joint
property.
9. Moreover section 12 of Hindu Minority and
Guardianship Act debars the court from appointing
guardian in respect of undivided share of minor in joint
family property. The counsel for the petitioner submitted
that said section debars appointment of guardian and not
permission to sell. To my mind, appointment of guardian
in respect of undivided share of minor in joint family
property is for permission to sell the property and nothing
else.
10. Section 8 of Hindu Minority & Guardianship Act, 1956
does not speak to any permission of the court for selling
the share of minor in joint property. In taking this view, I
am supported by decision in AIR 2006 NOC 1363 MP.
The natural guardian can sell the share of the minor so
long as the same is justified well under Hindu law
without permission from Court. In Sri Narayan
Bal&Ors. Vs. Sridhar Sutar & Ors. AIR 1996 SC 2371 it
was held that Hindu joint family can dispose of family
property including undivided interest of minor. In Ansal
Property Vs. Anand Nath ILR 1992 Delhi 540 it was held
that administration of undivided interest of minor in joint
family can be by defacto guardian."
3. Learned counsel for the appellant states that appellant will have
difficulty before the sub-Registrar at the time of seeking to register the
FAO 155/2013 Page 2 of 4
transfer of interest in the immovable property, and therefore, the present
appeal is filed.
4. In my opinion, the court below has erred in dismissing the petition by
observing that no permission is required inasmuch as, permission to sell the
undivided share of a minor is very much required as per Section 8 of the
Hindu Minority and Guardianship Act, 1956. When the provision of the
Hindu Minority and Guardianship Act refers to not appointing a guardian for
the undivided share of a minor in a joint family property, reference is made
to Hindu undivided family property, and not to undivided interest in a
property which is a co-ownership property and not a HUF property. In a
case of undivided interest in a co-owned property permission of the court
would be required under Section 8 of the Hindu Minority and Guardianship
Act.
5. In the present case, the requirement for selling of the property is for
upkeep, maintenance and educational expenses of the minor and which facts
show sufficient necessity for selling of the property, more so because the
appellant-petitioner is a natural mother of the minors Master Avinoor Singh
and Master Gurjot Singh and would sufficiently protect the interest of the
minors.
FAO 155/2013 Page 3 of 4
6. In view of the above, appeal is allowed and the appellant-petitioner is
granted permission to sell the shares of the minors in the back portion of the
first floor of the property bearing no.10/61, Subhash Nagar, New Delhi. The
amount which is received on account of sale of the property will either be
immediately and directly invested in purchase of an immovable property or
will be put in a fixed deposit in a nationalized bank and only interest thereof
will be used for upkeep, maintenance, educational expenses and other
necessary expenses of the minors. In case, there is need to withdraw a
lumpsum amount, whole or part of the fixed deposit, then on such a
necessity arising, petitioner can approach the competent court and which
will examine such application as per the facts as found.
7. The appeal is allowed and disposed of in terms of the aforesaid
observations. Parties are left to bear their own costs. Petitioner will give an
acceptable surety bond-cum-undertaking to the Guardianship Court in terms
of this judgment before selling the shares of the minors in the aforesaid
immovable property.
FEBRUARY 25, 2014 VALMIKI J. MEHTA, J.
ib
